An employment tribunal's decision dismissing claims of constructive dismissal and discrimination under the Disability Discrimination Act 1995 was set aside where the tribunal had failed to apply the correct law and had reached perverse factual conclusions.

 

The appellant employee (X) appealed against the employment tribunal's finding that the respondent former employer (Y) had neither constructively dismissed him, nor discriminated against him under the Disability Discrimination Act 1995.

 

Y had employed X as a warehouse operator. X alleged that he was bullied by a manager. X was given a final warning, allegedly prompted by his complaints, and was moved to a different department. He then suffered an angina attack, following which he was disabled for the purposes of the Act. He was placed on light duties, but that was stopped at a time when X still considered himself fit for only light duties. X resigned, alleging constructive dismissal on the grounds of bullying, an unfair transfer, and a failure to provide him with light work. He also claimed that the failure to provide light duties amounted to direct disability discrimination or disability-related discrimination and amounted to a failure to make reasonable adjustments.

 

HELD: (1) The tribunal had mis-stated the law regarding Y's duty to make reasonable adjustments, misapplied that law and failed to make the findings necessary to address X's claims. It had referred to s.6 of the Act when s.4A was the relevant provision. The tribunal had not addressed the claim that X could have undertaken light duties, or considered whether the burden of proof had shifted to Y under s.17A(1C). In summarising an employer's duty to take reasonable steps as "reasonable enquiries based on the information given to them" the tribunal had impermissibly diluted the duty to take reasonable steps to prevent an identified disadvantage. Further, the tribunal had found that Y's duty would only arise if X insisted on the provision of light duties. That was a fundamental misconception of the employer's duty. The tribunal had also failed to address X's distinct claims of direct disability discrimination and disability-related discrimination, and made perverse factual conclusions (see paras 18-24 of judgment). (2) The tribunal's failure to properly deal with issues raised under the Act inevitably affected its consideration of X's constructive dismissal claim. Other aspects of that claim were not the subject of any findings at all: namely the alleged bullying and the unfair transfer. The tribunal had found that the cessation of statutory sick pay appeared to have prompted X's resignation. That could only be tenable if X's evidence had been untrue, but there was no finding to that effect. In any event, the true test was whether X's resignation was at least in part in response to Y's alleged fundamental breach of its statutory duties, Meikle v Nottinghamshire CC [2004] EWCA Civ 859, [2004] 4 All E.R. 97 considered (para.25).

 

Appeal allowed